Ordinances bad for democracy but opposition disrupters are worse

When I wrote last week about the government issuing ordinances on coal auctions and foreign investment in insurance, this seemed a one-off tactic. But now ordinances look like they are becoming a standard Modi strategy to overcome opposition obstructionism.

The last session of Parliament left Modi looking weak and hobbled. Opposition disruptions totally prevented the Rajya Sabha from functioning, so it could not even consider, let alone pass, Bills cleared by the Lok Sabha on insurance and coal auctions. This raised the possibility of similar disruptions session after session in the future, crippling the government legislatively.

Modi struck back by issuing ordinances on these two issues in December. Now, ordinances are supposed to be used only when an issue is so urgent that it cannot wait for the next parliamentary session. This was hardly the case.So, Modi was criticized for misusing the Constitution. Legal expert Rajeev Dhawan called his action “Constitutional terrorism”.

Unfazed, Modi has decided to use ordinances repeatedly. A third ordinance has now regularized e-rickshaws in Delhi. A fourth has amended the land acquisition law. A fifth is planned to ensure speedier arbitration. A sixth will ease visa and related conditions for non-resident Indians. A seventh, on mineral royalties in tribal areas, may also be in the works.

So, Modi’s ordinances are not defensive measures. Rather, he is using them as an attack strategy, to combat the opposition’s disruption strategy in the Rajya Sabha. He aims to show that he means business and will not allow Rajya Sabha disrupters to spoil his strongman image.

More important, Modi is laying the ground for something totally new. He may seek a joint session of both houses of Parliament to convert not just one or two but a vast array of ordinanc es into law in one go.

The Constitution provides for a joint session if a Bill is passed in one House but defeated in the other. This can also be done if the two Houses disagree on amendments to a Bill.

Till now, Modi has taken the position that a joint session of Parliament will be a last resort. The BJP has only 45 seats out of 250 in the Upper House, but has hoped to enlist the support of regional parties to get Rajya Sabha approval for sundry Bills. However, opposition disruption has put paid to that approach. The disrupters will not even let the House consider any Bill, let alone pass it.

So, the Modi government may now view a joint session of Parliament as not a last resort but a first resort. Instead of trying to persuade unpersuadable opponents, it is issuing a series of ordinances on priority issues. It will dare the Rajya Sabha to reject them. If they are rejected, Modi can ask for a joint session.

But opposition disrupters may sabotage this approach by simply not allowing the Rajya Sab ha to vote at all. If the House does not explicitly reject a Bill, rejection cannot be cited a ground for convening a joint session. In theory, disrupters can paralyse the Rajya Sabha session after session, preventing a vote in the House ad infinitum.

But Modi can find succour in one more Constitutional provision on joint sessions. If one House passes a Bill but the second House neither accepts not rejects it for six months, then too the President can convene a joint session to settle the matter.

Parliament will adjourn once or twice during this six-month period. Between sessions, the same Bills can be re-issued as ordinances. Critics will lambast this as Ordinance Raj. However, in the Bihar Ordinance Raj case, the Supreme Court said that repeated ordinances were undesirable but not illegal. That will hold good here too.

The Lok Sabha will pass all Modi’s ordinances in its next session. These will then go to the Rajya Sabha. Disrupters may try to prevent a vote. But after six months of Rajya Sabha failure to vote, Modi can ask for a joint session of Parliament. This joint session can then pass a whole raft of Bills. Far from being an exceptional legislative route, the joint session can become the standard route to ram through most legislation.

For decades I have criticized Ordinance Raj by central and state governments as an erosion of democracy. Yet the disrupters in the Rajya Sabha are even greater eroders of democracy. Every party has been guilty of preventing legislatures from functioning in the past, and so none is willing to physically throw out disrupters.

Interesting question: what will happen if opposition rowdies prevent even a joint session from functioning? Will all parties finally accept that disruption is not a fundamental right of MPs, and throw out the disrupters? I truly hope so.